COURT OF APPEALS

DECISION

DATED AND FILED

March 16, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2020AP497 Cir. Ct. No. 2018CV813

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

SECORS, INC. P/K/A WAUSAU HARLEY DAVIDSON, INC. AND 

GORDON ROHDE,

 PLAINTIFFS-APPELLANTS,

 V.

CITY OF WAUSAU, WISCONSIN DEPARTMENT OF TRANSPORTATION,

OFFICE OF THE COMMISSIONER OF RAILROADS AND WISCONSIN 

CENTRAL, LTD.,

 DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Marathon County: 

JILL N. FALSTAD, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ. 

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2020AP497

2

¶1 PER CURIAM. Secors, Inc., and Gordon Rohde (“Secors”) sued the 

City of Wausau (“the City”), alleging that the closure of vehicular traffic access 

from Secors’ property to Townline Road in Wausau for reconstruction of a railroad 

crossing amounted to a taking of its property without due process and just 

compensation. Secors then amended its complaint to add the Wisconsin Department 

of Transportation (“DOT”), the Office of the Commissioner of Railroads (“OCR”), 

and Wisconsin Central Limited (“WCL”) as parties. Secors claimed that the 

blocking of its access to Townline Road involved those entities in a “railroad 

crossing improvement” and that they violated the requirements of WIS. STAT. chs. 

84 and 195 (2019-20).

1

 Secors also made claims against the DOT and OCR related 

to eminent domain, violation of due process, equal protection, and claims for 

mandamus and judicial review. 

¶2 Ultimately, the circuit court granted judgment to the DOT, OCR and 

WCL following their motions to dismiss Secors’ amended complaint for failure to 

state a claim upon which relief can be granted. Secors now appeals that judgment. 

It contends the court erred because its factual allegations against the DOT and OCR 

in its amended complaint, if true, are sufficient to entitle Secors to relief against 

those parties. Secors also contends that the court erred in dismissing its claims 

against WCL for one of two reasons: (1) WCL’s liability to Secors is implied by 

law; and (2) if liability is not legally implied, WCL was a necessary and 

indispensable party to Secors’ petition for judicial review of an administrative 

proceeding. We reject Secors’ arguments and conclude that the circuit court 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2020AP497

3

correctly determined that Secors’ amended complaint against the DOT, OCR and 

WCL failed to state any claims against those parties. We therefore affirm.2

BACKGROUND

¶3 Because this appeal is before us upon the granting of motions to 

dismiss for failure to state a claim, we recite the facts as alleged in Secors’ operative 

pleading. Secors owns two adjacent properties located at Townline Road in the 

City.3 The City voted in a closed meeting to block Secors’ property at 936 Townline 

Road from access to Townline Road for the purpose of the reconstruction of a 

railroad crossing, thus restricting vehicular access to its property. The City 

subsequently resolved to obtain part of Secors’ property pursuant to a revised 

Transportation Project Plat, but Secors alleged it did not follow eminent domain 

procedure, which would dictate giving Secors a jurisdictional offer or alternatives 

to closing its access to Townline Road. According to Secors, an unimproved access 

way—a dirt road—that connects its property to Single Avenue is insufficient to 

accommodate the frequent commercial truck traffic access to its property. 

¶4 Secors’ amended complaint generally alleged that Secors was solely 

burdened with the costs of the railroad improvements whereas the City, the DOT, 

and/or OCR should have paid those costs. Secors also alleged differential treatment 

from that of other property owners who received compensation for takings with 

 

2

 The circuit court left intact several of Secors’ claims against the City, which are not at 

issue on this appeal. 

3

 Secors owns two adjacent properties located at Townline Road. The first has an address 

of 936 Townline Road (Parcel 1) and the second has an address of 950 Townline Road (Parcel 2). 

Secors collectively refers to these properties as “936 Townline Road.” 
No. 2020AP497

4

regard to the proposed improvements. Secors contends this differential treatment 

violated its rights to due process and equal protection under the law.

¶5 Specifically, Secors’ amended complaint contained nine causes of 

action, seven of which are before us on appeal. Claims I and VII were brought 

solely against the City, and the City remains a party to the existing litigation with 

regard to those claims. The remaining seven claims against the DOT and OCR 

were: a claim that those parties violated WIS. STAT. chs. 84 and 195 (Claim II); a 

takings claim (Claims III and IV); a due process claim (Claim V); an equal 

protection claim (Claim VI); a claim for a writ of mandamus (Claim VIII); and a 

claim against OCR under WIS. STAT. § 227.53 (Claim IX). Secors’ amended 

complaint also alleged that WCL was liable for taking its property because if the 

City, the DOT, or OCR had exercised eminent domain authority, then WCL could 

be held liable to Secors because OCR could have apportioned costs between the 

different entities. Alternatively, Secors alleged that WCL was a necessary party in 

this litigation related to the failure of OCR to properly notice and conduct a hearing 

on changes made to the railroad crossing. 

¶6 The DOT, OCR and WCL filed motions to dismiss the amended 

complaint for failure to a state claim upon which relief could be granted. The circuit 

court issued a written decision granting the motions to dismiss. The court reasoned 

that the DOT and OCR should be dismissed because the amended complaint focused 

its allegations on the City. The court’s decision noted that the amended complaint 

“attempts to spread that blame around, asserting that ‘the City, and possibly OCR, 

[ ]DOT, and [WCL], acted in violation of Wisconsin Statutes when they closed the 

Plaintiffs’ Townline Road access without proper notice, opportunity to be heard, 

and without just compensation.’” The court then stated that “it was the City that 

voted to close the driveway, it was the City that failed to make a jurisdictional offer, 
No. 2020AP497

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and it was the City that deprived the plaintiffs of notice and an opportunity to be 

heard.” 

¶7 The circuit court further noted that the “amended complaint offers 

only bare legal conclusions, not allegations of fact” regarding those claims. The 

court therefore found that the amended complaint failed to state a claim against the 

DOT and OCR for which relief could be granted. The court granted WCL’s motion 

to dismiss for similar reasons and that “[n]early everything that was true about the 

State defendants’ motions is also true about [WCL]’s motion.” Secors now appeals. 

DISCUSSION

¶8 Whether a complaint states a claim upon which relief can be granted 

is a question of law that we review independently. Data Key Partners v. Permira 

Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693. To survive a 

motion to dismiss for failure to state a claim, a complaint must contain “[a] short 

and plain statement of the claim, identifying the transaction or occurrence or series 

of transactions or occurrences out of which the claim arises and showing that the 

pleader is entitled to relief.” WIS. STAT. § 802.02(1)(a); see also Data Key Partners, 

356 Wis. 2d 665, ¶20. Stated differently, a complaint must plead facts, which if 

true, would entitle the plaintiff to relief. Data Key Partners, 356 Wis. 2d 665, ¶21. 

When determining whether a complaint states a claim, we must accept as true all 

well-pleaded facts in the complaint and the reasonable inferences drawn therefrom. 

Id., ¶19. However, we do not accord any weight or truth to legal conclusions alleged 

in a complaint. Id.

¶9 “[T]he sufficiency of a complaint depends on substantive law that 

underlies the claim made because it is the substantive law that drives what facts 

must be pled.” Id., ¶31. “If proof of the well-pleaded facts in a complaint would 
No. 2020AP497

6

satisfy each element of a cause of action, then the complaint has stated a claim upon 

which relief may be granted.” Cattau v. National Ins. Servs. of Wis., Inc., 2019 

WI 46, ¶6, 386 Wis. 2d 515, 926 N.W.2d 756, reconsideration denied, 2019 WI 84, 

388 Wis. 2d 652, 931 N.W.2d 538. 

I. Dismissals of the DOT and OCR

¶10 As mentioned above, Secors’ amended complaint contains seven 

claims relevant on appeal. We will address each of its claims in turn. 

A. Violation of WIS. STAT. chs. 84 and 195 (Claim II)

¶11 Secors argues that its amended complaint stated a viable claim against 

the DOT and OCR for violations of WIS. STAT. chs. 84 and 195. Secors contends 

the “[the DOT and OCR] were required to give notice to Secors and conduct a public 

hearing once they determined that improvements to the Townline Road railroad 

crossing were required in the interest of public safety or convenience.” See WIS.

STAT. § 84.05 (“[T]he department shall lay the matter before the office of the 

commissioner of railroads, and the office of the commissioner of railroads shall 

review the proceedings and hold a hearing thereon.”); WIS. STAT.§ 195.29(1) 

(“[T]he office shall give notice to the parties in interest and proceed to investigate 

the same and to order a hearing thereon.”). 

¶12 Secors contends that Claim II sufficiently alleged that the DOT and 

OCR failed to comply with either of those statutes by failing to give notice of a 

hearing to Secors. It is clear from the face of the amended complaint it did no such 

thing. Of relevance, Secors alleged that on March 26, 2017, the DOT filed a petition 

with OCR requesting a safety determination as to proposed alterations to the railroad 

crossing at Townline Road. Secors alleged that these proposed alterations 
No. 2020AP497

7

specifically included the closing of Secors’ driveway and parking lot. The amended 

complaint alleged that despite the DOT’s petition including a proposed taking of 

Secors’ property, Secors was not given notice of the petition, nor was it given the 

opportunity to participate in any public hearing. Meanwhile, Secors’ amended 

complaint never alleged a factual basis for blaming the DOT or OCR for this failure.

¶13 Secors’ arguments are at odds with other allegations in its amended 

complaint, which are relevant when reviewing a motion to dismiss. See Peterson v. 

Volkswagen of Am., Inc., 2005 WI 61, ¶15, 281 Wis. 2d 39, 697 N.W.2d 61. The 

amended complaint placed the blame for the lack of notice of an administrative 

proceeding squarely on the City, not the DOT or OCR. Specifically, paragraph 23 

of the amended complaint stated in relevant part, that “the City improperly removed 

[Secors] from the list of owners affected by improvements to Townline Road, ... as 

a result, [Secors] did not receive proper notices.” The amended complaint as it 

pertains to the DOT and OCR merely alleged that “the City, and other named 

defendants, violated provisions of [WIS. STAT. chs.] 84 and 195” and “skirted 

statutory requirements.” These allegations amounted to legal conclusions—and 

vague ones at that—which we will not accept as true for purposes of determining 

the sufficiency of the complaint. See Data Key Partners, 356 Wis. 2d 665, ¶19. 

¶14 Claim II contains no factual allegations implicating noncompliance 

with WIS. STAT. §§ 84.05 or 195.29(1) by either the DOT or OCR. Specifically, the 

amended complaint failed to allege any facts showing any involvement by the DOT 

or OCR in removing Secors’ name from the list of owners affected by the 

improvements. In fact, as noted above, the amended complaint solely blamed the 

City for lack of notice to Secors, alleging that the City alone removed Secors’ name 

from the list of owners affected by the improvements, resulting in the lack of notice. 

Secors’ amended complaint alleged no other reason for the lack of notice to Secors, 
No. 2020AP497

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let alone any reason attributable to the DOT or OCR. Therefore, Secors’ Claim II 

failed to state a claim for which relief could be granted against the DOT or OCR, 

and the circuit court properly dismissed that claim.

B. Inverse Condemnation (Claim III) and Takings (Claim IV) 

¶15 Secors also argues that Claims III and IV of its amended complaint 

satisfactorily stated a “constitutional takings claim.” In support of its argument that 

the right to access a public road is a property interest, Secors cites Stefan Auto Body 

v. State Highway Commission, 21 Wis. 2d 363, 370, 124 N.W.2d 319 (1963), and 

Schneider v. State, 51 Wis. 2d 458, 463, 187 N.W.2d 172 (1971). Secors contends 

that both of those cases support its proposition that “the right of access of an abutting 

property owner to a public road is a property right incidental to ownership of the 

abutting land.” It is this right of access that Secors suggests on appeal constitutes a 

“taking” of a property interest without compensation. 

¶16 Even assuming that the allegations were sufficient to advance a cause 

of action based on the government’s taking of private property, the circuit court 

correctly dismissed these claims because the amended complaint focused only on 

the actions of the City, not on the actions of the DOT or OCR. In Claim III, Secors 

alleged that “936 Townline Road has been deprived of reasonable access by [the 

City’s] decision to block access to Townline Road, in which decision other named 

defendants actively participated.” From these vague allegations, it is unclear what 

Secors claims the DOT or OCR did to actively participate in the City’s taking 

decision to block access from Secors’ property to Townline Road. Accordingly, the 

amended complaint is not sufficiently “well pleaded.” 

¶17 Claim IV merely “restate[d] and re-allege[d] all prior allegations of 

paragraphs 1 through 53” of the amended complaint, which included those 
No. 2020AP497

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allegations discussed in Claim III, and then asserted two legal conclusions. 

However, Secors did not allege in paragraphs 1 through 53 any particular actions by 

the DOT or OCR to support its takings or inverse condemnation claims against 

either of those agencies. Absent any alleged action by the DOT or OCR to block 

Secors’ access to Townline Road, Secors’ Claims III and IV of its amended 

complaint do not survive the motions to dismiss, and the circuit court properly 

dismissed those claims. 

C. Due Process (Claim V)

¶18 Secors next argues that its Claim V sufficiently stated a due process 

claim against the DOT and OCR. Specifically, Secors alleges that “it is entitled to 

a right to due process and an opportunity to be heard, it was deprived of that right, 

and it was harmed as a result of that deprivation.” 

¶19 Secors’ procedural due process claims against the DOT and OCR are 

analyzed in two steps: (1) “whether there exists a liberty ... interest which has been 

interfered with by the State”; and (2) “whether the procedures attendant upon that 

deprivation were constitutionally sufficient.” See Casteel v. McCaughtry, 176 

Wis. 2d 571, 579, 500 N.W.2d 277 (1993) (citation omitted). Due process requires 

that “a person in jeopardy of serious loss (be given) notice of the case against him 

and opportunity to meet it.” Mathews v. Eldridge, 424 U.S. 319, 348 (1976) 

(citation omitted). “All that is necessary is that the procedures be tailored, in light 

of the decision to be made, to ‘the capacities and circumstances of those who are to 

be heard’ to insure that they are given a meaningful opportunity to present their 

case.” Id. at 349 (citation omitted). 

¶20 Secors’ amended complaint failed the first requirement for alleging a 

procedural due process claim—that is, a property interest of Secors with which the 
No. 2020AP497

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DOT or OCR has interfered. As explained above, Secors’ amended complaint 

solely focused on the actions that the City took to deprive Secors of its property. 

The amended complaint did not explain what actions the DOT or OCR took to 

deprive Secors of its property. Secors was “required to plead ‘more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action.’” See 

Data Key Partners, 356 Wis. 2d 665, ¶37 (citation omitted). Secors’ amended 

complaint repeated the legal elements of a due process claim, but it failed to plead 

facts supporting the application of those legal conclusions—at least with respect to 

the DOT and OCR. “[C]ourts are not bound to accept as true a legal conclusion 

couched as a factual allegation.” Id. (citation omitted). Therefore, the circuit court 

properly dismissed Secors’ Claim V.

D. Equal Protection (Claim VI)

¶21 Secors argues that Claim VI stated a valid claim against the DOT and 

OCR under the Equal Protection Clause, and, thus, dismissal was therefore 

inappropriate. The Equal Protection Clause ensures that people will not be 

discriminated against with regard to “statutory classification.” Thorp v. Town of 

Lebanon, 2000 WI 60, ¶37, 235 Wis. 2d 610, 612 N.W.2d 59 (citation omitted). 

Here, Secors contends that it was “treated differently than other similarly situated 

landowners.” The amended complaint alleged that Secors “suffered harm” due to 

the actions by the City and the actions “of the other named defendants.” 

Additionally, Secors alleged that “the City’s actions, and the actions of other 

Defendants, constitute a violation of [Secors’] right to equal protection as applied 

to the facts of this case and on its face.” 

¶22 Secors’ Claim VI fails for a number of reasons. Secors’ amended 

complaint failed to allege facts showing what the DOT or OCR did to discriminate 
No. 2020AP497

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against Secors. See id., ¶37. As the amended complaint stands, all that is alleged is 

that Secors was treated differently than others similarly situated. It did not identify 

any other landowners or persons similarly situated, nor did it specify what 

preferential treatment those landowners or persons received from the DOT or OCR 

that was not provided by the DOT or OCR to Secors. Secors’ claim consisted only 

of legal conclusions, which alone are insufficient to state an equal protection claim. 

See Data Key Partners, 356 Wis. 2d 665, ¶37. The circuit court therefore properly 

dismissed Claim VI.

E. Action for Writ of Mandamus (Claim VIII)

¶23 Secors next argues that, under its Claim VIII, the DOT and OCR “had 

a positive and plain duty under WIS. STAT. § 84.05 to give notice to Secors and hold 

a public hearing.” Secors then contends that it had a right to “participate in a public 

hearing concerning the proposed charges to the railroad crossing at Townline 

Road.” In its amended complaint, Secors sought “an order of mandamus compelling 

the responsible party to pay [Secors] for the taking of land and for special damages 

incurred by [Secors].” 

¶24 Mandamus may be used “to compel a public officer to perform a duty 

of his [or her] office presently due to be performed where there is a clear legal right, 

a positive and plain duty, substantial damage in the absence of performance, and no 

other adequate remedy.” State ex rel. Marberry v. Macht, 2003 WI 79, ¶27, 262 

Wis. 2d 720, 665 N.W.2d 155. Secors’ claim seeking a writ of mandamus is flawed 

for a number of reasons. 

¶25 First, Claim VIII is essentially a claim for money damages against the 

DOT and OCR. A request for money damages is not available in an action for 

mandamus relief. Mandamus is a remedy used to compel a public officer to perform 
No. 2020AP497

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a prescribed statutory prescribed duty. Morrissette v. De Zonia, 63 Wis. 2d 429, 

432, 217 N.W.2d 377 (1974). Secors contends Claim VIII is a claim premised on 

the failure to provide notice, not for the failure to pay money. However, that 

contention is inconsistent with Secors’ amended complaint, in which it demanded 

“an order of mandamus compelling the responsible party to pay [Secors] for the 

taking of land and for special damages incurred by [Secors].” 

¶26 In addition, and as mentioned above, on appeal Secors asserts that the 

DOT and OCR had a “positive and plain duty under WIS. STAT. § 84.05 to give 

notice to Secors and hold a public hearing.” However Secors’ amended complaint 

did not demand a writ of mandamus requiring the DOT or OCR to provide notice 

and hold a public hearing. And Secors’ brief on appeal does not raise any argument 

that the amended complaint actually demanded such relief, so we need not consider 

its argument in this regard. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 

633 (Ct. App. 1992). Secors’ allegations are insufficient to state a claim for 

mandamus relief, and the circuit court therefore properly dismissed Claim VIII. 

F. Judicial Review under WIS. STAT.§ 227.53 (Claim IX) 

¶27 Secors argues that Claim IX sufficiently stated a claim for judicial 

review of an OCR decision under WIS. STAT. § 227.53(1). Claim IX sought judicial 

review of the OCR decision, alleging that Secors’ “property rights were 

significantly affected by the OCR decision.” Secors claimed that the purported 

decision was “erroneous because ‘there was no legitimate safety concern’ 

concerning Secors’ property and ‘any safety concerns could have been addressed 

by more reasonable alternatives’ than taking Secors’ property.” 

¶28 WISCONSIN STAT. § 227.53(1) provides that “any person aggrieved by 

a decision specified in s. 227.52 shall be entitled to judicial review of the decision 
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as provided in this chapter.” WISCONSIN STAT. § 227.52 states that 

“[a]dministrative decisions which adversely affect the substantial interests of any 

person, whether by action or inaction, whether affirmative or negative in form, are 

subject to review.” 

¶29 Claim IX fails because Secors failed to plead facts sufficient to 

identify what adverse OCR decision it sought to challenge under WIS. STAT.

§ 227.53(1). As noted by the circuit court, the amended complaint “does not 

identify the date or subject matter of the decision at all.” It is not possible to identify 

from the amended complaint or Secors’ brief which OCR decision Secors sought to 

challenge. 

¶30 Secors’ brief’s appendix on appeal included an OCR hearing 

determination described as “Final Decision—Office of the Commissioner of 

Railroads.” However, Secors did not file that decision in the circuit court until after 

the court issued its decision, and it is therefore not part of the record on appeal. We 

are limited to the record as it comes to us from the circuit court and we may not

consider the decision merely included in Secors’ appellate appendix after the fact. 

See State v. Flynn, 190 Wis. 2d 31, 46 n.4, 527 N.W.2d 343 (Ct. App. 1994). 

Additionally, the determination was not attached to, or incorporated by reference in 

Secors’ amended complaint. On our review of a motion to dismiss, we are “limited 

to the examination of the facts as stated in the complaint.” Heinritz v. Lawrence 

Univ., 194 Wis. 2d 606, 611, 535 N.W.2d 81 (Ct. App. 1995).

¶31 Secors contends the circuit court should have allowed it to further 

amend its complaint, presumably to then attach a copy of the OCR decision. There 

is no record of any Secors’ motion to amend its complaint. Secors relies upon 

Jackson v. LIRC, 2006 WI App 97, ¶2, 293 Wis. 2d 332, 715 N.W.2d 654. In that 
No. 2020AP497

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case, we held that, under WIS. STAT. § 227.56(3), a circuit court may not “sua sponte 

dismiss a petition without a motion from the respondent and without the petitioner 

having at least one opportunity to amend the petition on the terms described.” 

However, the court in the present case did not sua sponte dismiss Secors’ amended 

complaint without Secors having an opportunity to further amend its complaint. The 

complaint was instead dismissed after the court received and reviewed the motions 

to dismiss after full briefing on them. 

¶32 Additionally, assuming the circuit court should have given Secors an 

opportunity to amend its complaint to include reference to the subject OCR decision, 

Secors fails to show how it was prejudiced by the lack of that opportunity. Under 

WIS. STAT. § 805.18(2), there shall be no relief on appeal “unless in the opinion of 

the court ... after an examination of the entire action or proceeding, it shall appear 

that the error complained of has affected the substantial rights of the [complaining] 

party.” Amsoil, Inc. v. LIRC, 173 Wis. 2d 154, 167, 496 N.W.2d 150 (Ct. App. 

1992) (quoting § 805.18(2)). An error is prejudicial if we conclude that, but for the 

error, there probably would have been a different result. Amsoil, 173 Wis. 2d at 

167. Even if we were to consider the OCR decision, Secors has failed to 

demonstrate it was aggrieved by it. The OCR decision did not require the closing 

of Secors’ access to Townline Road. That decision only required WCL to take 

certain additional safety actions. Therefore, Secors has failed to show that it was 

“aggrieved” by any OCR decision under WIS. STAT. § 227.53(1). 

¶33 Finally, even if we are to consider the OCR decision, the request for 

judicial review was untimely. Under WIS. STAT. § 227.53(1)(a)1. and 2., “petitions 

for review of contested cases shall be served and filed within 30 days after the 

service of the decision of the agency upon all parties under [WIS. STAT. §] 227.48.” 

The only decision identified is the OCR decision included in Secors’ brief’s 
No. 2020AP497

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appendix. That decision was issued on November 28, 2018. Secors filed its 

amended complaint against OCR on June 17, 2019. Because Secors’ amended 

complaint was not filed within thirty days of the determination, it was untimely. 

Secors offers no argument against the untimeliness of its WIS. STAT. ch. 227 claim. 

For all of these reason, the circuit court properly dismissed Claim IX. 

II. Dismissal as to WCL

A. Liability of WCL to Secors is Not Implied 

¶34 Secors argues that if the City, the DOT, or OCR exercised eminent 

domain authority, then WCL “would, or at the very least could” be liable because 

Secors was not provided notice by WCL that OCR could apportion costs between 

different entities—including to WCL. However, WIS. STAT. § 84.05 provides, in 

relevant part, that the DOT “shall endeavor to make an arrangement with all persons 

concerned as to all matters involved in the plan, including the portion of the cost of 

the contemplated work which the persons shall defray.” Similarly, WIS. STAT.

ch. 195 twice provides that “the office shall give notice to the parties in interest” 

regarding petitions to alter railroad crossings. WIS. STAT. §§ 195.29(1), 195.30(1). 

The “department” and the “office” in those statutes refer to the DOT and OCR, 

respectively. Accordingly, only the DOT and OCR are required under those statutes 

to provide notice to potentially interested parties; WCL is not required to do so. 

Therefore, those statutes do not provide Secors with a basis for a court to imply 

liability on the part of WCL. Secors does not cite any other legal authority 

supporting the proposition that WCL was required to provide any notice to Secors 

regarding the alterations to the railroad crossing at Townline Road.
No. 2020AP497

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B. WCL Is Not a Required Party

¶35 Secors next argues that WCL is a “proper and necessary party” in this 

lawsuit. Secors contends that WCL “was a party who showed interest in and 

actively participated in the administrative hearing.” In support of its argument, 

Secors cites only to WIS. STAT. § 227.53(1)(a)2. and (1)(c). 

¶36 Secors’ argument is misplaced. Under WIS. STAT. § 227.53(2), it is 

WCL’s right to intervene if it so choses: 

Every person served with the petition for review as provided 

in this section and who desires to participate in the 

proceedings for review thereby instituted shall serve upon 

the petitioner, within 20 days after service of the petition 

upon such person, a notice of appearance clearly stating the 

person's position with reference to each material allegation 

in the petition and to the affirmance, vacation or 

modification of the order or decision under review.

Sec. 227.53(2) (emphasis added). In these proceedings, WCL could have 

participated, but it has chosen not to, and it is not a required party under statute. The 

circuit court properly dismissed WCL as a party to this action. 

C. WCL’s Dismissal Is Without Prejudice

¶37 Secors argues that the dismissal of its claims against WCL should be 

without prejudice. The circuit court did not expressly state whether the dismissal 

was with or without prejudice. Generally, when a dismissal for failure to state a 

claim does not specify whether it is with or without prejudice the dismissal should 

not be treated as a bar to the filing of the subsequent complaint. State ex rel. Schatz 

v. McCaughtry, 2003 WI 80, ¶36, 263 Wis. 2d 83, 664 N.W.2d 596. Therefore, we 

construe the dismissal to be without prejudice. 
No. 2020AP497

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By the Court.—Judgment affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.